Maryland Injury Lawyer Blog

The New York Times reports that a Montana jury found on Wednesday that the maker of Louisville Slugger baseball bats failed to adequately warn about the dangers that aluminum bat can pose, awarding $850,000 for the tragic death of an 18 year-old boy hit by a ball while pitching in a American Legion baseball game.

I look forward to hearing the commentary on this case. I didn't sit on the jury on this case and I wonder what warnings would have been sufficient. My gut reaction: the warnings that would be placed on the bat would be something all of the players already know. I also wonder how a meaningful warning is given to the pitcher who never sees the bat.

If they think that the negligence did cause the boy's death, $850,000 certainly is a low award. Was this a compromise verdict? I look forward to hearing more about the case.

Medical malpractice lawyers, victims’ advocacy groups, doctors (and their lobbyists) and insurance companies have produced a heretofore unprecedented spate of editorials on medical malpractice reform in the last few months. Even I’m bored with it.

But this editorial in Salon is a little different because the message – that medical malpractice tort reform is not the answer – comes from a pediatrician. The doctor methodically and concisely attacks the premises behind the tort reform movement, including the idea that there is a pandemic of frivolous medical malpractice lawsuits:

Instead of a swamp of frivolous lawsuits, what the data shows is a system that functions. Insubstantial claims tend to collapse, while the medical industry usually opts to pay off injured patients instead of going to trial. The doctors and the insurers choose to fight to win when they think they can, and when there is enough money at stake, and usually do win.

Certainly, the fact that it is coming from a doctor does not make it so. But it certainly lends a different authenticity.

This morning I blogged about University of Maryland Medical Systems v. Waldt in one of the longest posts in Maryland Injury Lawyer Blog history. Apparently, in light of my blog post and the criticisms contained in the post, the Maryland Court of Appeals withdrew the opinion. (Okay, maybe it did not happen quite that way. But allow me to pretend.)

What does this mean? I have no idea. The Maryland high court substantively changed its opinion a few years back in Erie v. Heffernan on the question of the impact of insurance companies waiving subrogation in uninsured motorist claims. But the court reaffirmed the deleted portions of the opinion in Heffernan in Maurer v. Pennsylvania National. I'm still perplexed by the thinking on all of that to this day. I'm sure there was a logical reason. But the Maryland Court of Appeals does not share its thinking on these things.

Anyway, the Vegas odds are that this means nothing of great substance. I doubt one of the four judges in the majority is going to flip and join the dissent to make a majority. The changes could just be trivial. But anything is possible and we will have to wait and see.

The Maryland Court of Appeals reached a decision in University of Maryland Medical System v. Waldt, a case that is reverberating among medical malpractice lawyers in Maryland. (Note: In yet another incredible turn, the Maryland high court has - temporarily at least - withdrawn this opinion.) Yet the back story is better than the case. The case was tried by two of the most prolific lawyers in Maryland’s history: Steve Snyder and Billy Murphy. As discussed below, Steve Snyder said he would retire if he lost this case on appeal. (I think he will get a takey-backsie on this one.) At some point in the trial, the Baltimore City judge that tried the case was obligated to give this admonition:

“This is it. Last warning to everybody,” she said. “No finger-pointing, children. No stomping your feet. No screaming. No yelling. No dancing around. No calling names. No throwing sticks and stones. No putting gum in each other’s hair.”

So it got out of control. (More on that later.) But this opinion is important; the underlying trial was an epic and personal war, and Maryland malpractice law is either much more clear or an abyss of confusion, depending upon who you ask. While you take a breath, let’s talk about the facts.

This is the tragic case of a Mount Airy woman who was paralyzed on her left side as the result of an operation to treat a brain aneurysm. Plaintiff underwent a procedure at University of Maryland Hospital to treat an aneurysm which caused bleeding that lead to her injuries, according to the evidence offered by Plaintiff’s attorney at trial.

At trial, Plaintiff called an expert to offer opinions both on the standard of care and on informed consent. The trial judge, Baltimore City Circuit Court Judge Lynn Stewart, excluded the expert’s testimony because the expert devoted more than 20% of his professional activities to activities that directly involve testimony in personal injury claims. (Maryland law requires malpractice experts to spend less than 20% of their time in medical malpractice or other personal injury cases.) Because this was Plaintiff’s only expert, the court directed judgment in favor of the Defendants.

The expert was not just some random guy. He held positions at Massachusetts General Hosptial, Harvard, and John Hopkins. The doctor was also not caught up in the medical malpractice testifying racket: he made less than $50,000 a year. He had not, however, seen patients since 2001 and was no longer licensed to practice medicine in the United States. Interestingly, he said he had a medical license in France, but only to write prescriptions for family members. His professional activities included conducting literature peer reviews, reading journals, observing procedures, and discussing patients with former colleagues. His testimony at trial:

Murphy: Now, you testified that you no longer practice medicine but you handle cases for plaintiffs’ lawyers who are suing others for malpractice?

Expert: Yes.

Murphy: That’s all you basically do now except for read journals and go to an occasional meeting, right?

Expert: Yes.

Murphy: So, you are a professional witness, sir, aren’t you?

Slutkin: Objection, your honor.

Judge: Overruled.

Murphy: You are a professional witness, aren’t you, sir?

Expert: I guess I am.

The Maryland Court of Special Appeals disagreed that the expert should be disqualified, finding that the evidence showed that the expert did not violate the 20% rule. The Maryland Court of Appeals reversed and affirmed the judgment.

(Brief intermission: technically, it is the Court of Special Appeals of Maryland and the Court of Appeals of Maryland. But I think it sounds funny.)

Continue reading "New Maryland Medical Malpractice Opinion" »

I once had a jury ask the judge to see my damage exhibits in a case where I had asked for over $800,000. We all knew what that meant: Plaintiff's verdict. The judge gently chided the defense lawyer for making no offer in the case. I took a deep, satisfied breath with confidence that a jury verdict was imminent.

Because of how I'm leading the story, you know what happens next. The jury came back with a defense verdict.

So, I take with more than a few grains of salt any question that a jury has during deliberations. The Sacramento Bee reports that jurors in a wrongful death case in Sacramento asked for an adding machine that went up to ten digits.

In spite of my story above, I would still view this as a favorable sign for Plaintiffs.

I found this nugget from a hearing transcript in a brain injury truck collision case where we are trying to require the defense's medical expert to provide a modicum of documentation regarding the amount of income he earns from insurance companies:

There are a lot of experts on both sides of the aisle who may as well be independent medical examiners because they are honest doctors who just call it as they see it. The problem is that insurance companies - and plaintiffs' accident injury lawyers too but I think to a less extent - frequently stick with the "known known" - as Donald Rumsfeld would say - and only use experts that are the opposite of independent.

• Our Conditions for an Independent Medical Exam: the defendant will rarely comply this request but a subpoena requires the defendant to consider the requests/li>

• Thoughts on Cross Examining IME Doctors: sample cross examination questions
• Should Lawyers Videotape Independent Medical Exams?
• National Law Journal Article on IMEs: an article I like because it quotes me
• USALawyers Article on IMEs: another article I like because it quotes me - I'm easy like that.
• Response to Protective Order for IME Doctor Not to Produce Financial Records

Years ago, a personal injury lawyer in Southern California named Mitch Jackson started blogging. Mitch had great content and was posting frequently. One day I looked up and he disappeared, joining the list of talented people burned on blogging.

Mitch sent me an email this week telling me that he was up and blogging again. Check him out on Trial Lawyer Tips. The blog is directed to trial lawyers and has a very clear, conversational voice.

This from NPR:

In the ongoing health care overhaul drama, the Obama administration and the health insurance industry have gone from uneasy allies to bitter adversaries.

One result is that health insurers stand to lose a privilege their industry has enjoyed for the past 64 years: They, like Major League Baseball, have been exempt from federal antitrust laws. Congressional Democrats are now pushing to strip the health insurance industry of that exemption.

Things turned ugly earlier this month after the health insurance industry rejected the health care makeover it once supported. President Obama dedicated his most recent weekly address almost entirely to blasting those insurers; he accused them of skimming big profits off ever-escalating premiums.

"They're earning these profits and bonuses while enjoying a privileged exception from our antitrust laws, a matter that Congress is rightfully reviewing," the president said.

I teach insurance law. I consider myself very knowledgeable about most issues pertaining to insurance law. I have no idea why I'm admitting this but I had no idea that health insurers had a federal antitrust law exemption. Did you know this? I don't know how I didn't. It is like Derek Jeter not knowing he can run on a third strike when the catcher drops the ball. Okay. Not really. But you get the idea.

The Georgia Supreme Court recently ruled in Condra v. Atlanta Orthopaedic Group on an interesting issue in medical malpractice cases: can the standard-of-care medical expert be subject to cross examination about what the expert would have done if the doctor had treated the patient?

(If you are not interested in the nuance of the facts, skip the next two paragraphs to cut to the chase.) Plaintiff went to an ortho for back, neck and arm pain. The ortho prescribed a 30-day regimen of the anti-convulsive drug Tegretol, which was followed by another 30-day regimen when the patient failed to improve. During the second regimen, Plaintiff began to experience leg cramps and shortness of breath. Ultimately, she was diagnosed with aplastic anemia, an awful bone marrow disease where the bone marrow does not produce sufficient red blood cells, requiring many a bone marrow transplant. (Marie Curie was thought to have died as a result of aplastic anemia.) Plaintiff’s lawsuit against her doctor, who belongs to a huge Atlanta orthopedic practice, alleged that Tegretol was the wrong drug to prescribe and that the doctor should have monitored Plaintiff’s blood count during the Tegretol therapy. Had he done so, according to Plaintiff, this terrible disease could have been avoided.

The doctors’ experts admitted that there is medical literature to support blood count monitoring during Tegretol therapy as appropriate but weaseled out by arguing that it was not "mandatory or essential" even though it was both experts’ regular practice. They also fought the doctor’s malpractice lawyer’s favorite alternative argument: it would not have made a difference if he had done what the Plaintiff’s experts said should have been done because blood monitoring would not have detected aplastic anemia.

The key point on appeal was whether the defendant’s experts could be cross examined on the fact that it was their practice to do the very thing that they testified was not a breach of the standard of care. So the defendant doctor’s expert says in deposition, “Sure, I do what you say the doctor should have done in this case but the standard of care does not require it.”

The point here is not subtle: Plaintiffs’ malpractice lawyers want the jury to conclude that if the defendant’s experts are taking the same precaution that they claim is above and beyond the standard of care, it underscores what the real standard of care is. Think about it. If a doctor testifies that the defendant's failure to take a precaution conforms with the "acceptable standard of care", the credibility of that doctor’s testimony is severely diminished if the medical expert concedes on cross examination that he/she makes sure to do exactly what the plaintiff contends should have been done.

Of course, no one can argue that the standard of care cannot be established by what the defense expert does. But while the expert's personal practices may not establish the appropriate standard of care, if even the doctors selected by the defendant’s malpractice lawyer are doing what plaintiff says should have been done, it is pretty powerful evidence. This is particularly true in the real world where most doctors’ opinions about standard of care are not based on real data but what the doctor personally believes is – or should be - the standard of care.

Continue reading "Evidence of Expert's Personal Practices: A New Opinion in Georgia" »

I received the following comment in my inbox on Monday morning:

I was just made aware that if the person who hit you is under-insured, you may be able to use your own motorcycle insurance or even your car insurance for compensation.

At first glance, I thought it was a strange thing to share with me. Then I looked at the author: Denver Motorcycle Lawyer. The website attached to the link is “Denver-Motorcycle- Lawyer” and apparent solo practitioner Scott Sullivan. I’m not linking to the site because I don’t want to aid and abet this effort.

I have a couple of thoughts here. First, don’t spam me. Second, if you have to spam me, do not make it something that on its face makes you look awful. Pretending that you were “just made aware” that there may be an underinsured motorist claim in a motorcycle accident while you are holding yourself out as Mr. Motorcycle Accident Lawyer? Not a good idea. Have we gotten to the point where personal injury lawyers cannot even give us good quality spam?

The competition for Internet traffic for personal injury lawyers – particularly accident lawyers since that is the one thing everyone and their mothers seems to think they can do – is increasing exponentially. I’m feeling it from other Maryland accident lawyers. In response to this competition, everyone is looking for that extra edge. In this case, either Scott Sullivan or someone working on his behalf took this competition one step too far by spamming a blog.

If Eric Turkewitz is right, the real irony is that this comment spam does not do much to help your website. In response to spam that he received, Turkewitz writes:

… I think that there is very little that is actually gained by the spam. There is no link juice, since comments on blogs are routinely set as "do not follow" so that Google doesn't give them any link love. Their pagerank doesn't benefit from the practice.

If someone is doing this for Sullivan, he is hurting his reputation as a lawyer while accomplishing nothing. It is like a Minnesota Timberwolves trade. My advice: fire your web guy/girl and hire either OptiLaw (410-604-1200) or Justia (1-888-JUSTIA1) and have them do your website or blog for you.

Spam actually bothers me less than the average person. I also don't take offense to cold calls, unwanted faxes, etc. It is not worth getting worked up over. But I just really don't like the idea of personal injury lawyers spamming anyone. This type of stuff underscores that for all of the misleading attacks on lawyers, the reputation wounds to accident and personal injury lawyers are largely self inflicted.

Most of my information and opinions on taxis and taxi drivers come from the television show Taxi. Unlike most 70s/80s television shows, Taxi holds up fairly well on reruns.

Anyway, it is pretty clear that Baltimore City and Prince George’s County cab companies are a different animal than Alex Reager's Sunshine Cab Company. There are a lot of single cab operators who disproportionately have MAIF insurance with a 20k/40k coverage limit. For people outside of Maryland, MAIF is a state owned car insurance company for Maryland car owners who cannot get insurance elsewhere but are licensed to drive in Maryland. Let's be polite and call these folks high risk drivers.

It is borderline insane, given how much time a taxi driver spends on the road compared to the rest of us, that (1) he/she is allowed to drive with a shoddy driving record, and that (2) taxi drivers are allowed to drive around with 20k/40k coverage limits.

There would be a lot of wisdom in raising the bar for who can drive a taxi cab in Maryland and in requiring taxis to have a minimum 100k/300k in insurance coverage. That level of coverage is insufficient, but it would be a start, and higher limits could be phased in over time.

By popular demand, Miller & Zois has just created a Twitter page that links to all Miller & Zois blogs. Okay, maybe popular demand is a little strong but I have gotten a lot of requests. All right, no one actually asked. But if you are not following our lawyers' blogs on an RSS feed, this is another easy way to do it.

We have a lot of lawyers writing a lot of really good, substantive blogs. Check them out.

You can also follow me on Twitter here.

The Pop Tort has a blog post underscoring that Texas’ draconian medical malpractice tort reform, while a boon for doctors, has hardly improved medical care in Texas.

There has been a lot of talk about how doctors are flowing into Texas as a result of tort reform. Setting aside the issue that facts do not support this contention – Texas ranks 43rd in doctors per capita - you cannot help but wonder exactly which doctors were motivated to pack their bags and head to Texas in light of malpractice tort reform.

Who would do that? Who were the fence sitter doctors who decided to move to Texas because of tort reform? Let’s take a look at who might.

A doctor who has not been successful enough to have a quality existing practice? Check.

A doctor for whom malpractice rates are particularly an issue because malpractice rates are so high for frequent flyer malpractice doctors? Check.

A doctor who wants to get out of Dodge and get a fresh start because of a shaky disciplinary record? Check.

Sure, this is a dramatic overgeneralization. I’m sure good doctors flock to Texas every year because Texas has warm weather, everything is bigger in Texas, blah, blah, blah. But you really have to wonder who is being enticed to Texas by cheaper medical malpractice premiums.

Jurors in Florida heard arguments yesterday in a lawsuit filed by the family of a 16 year-old boy who died while training at the IMG Academy’s International Performance Institute. According to the wrongful death lawsuit filed by the family's lawyer, the sports academy should have performed a thorough enough physical examination before allowing the child to participate in strenuous exercise. The lawsuit also claims that the school ignored the fact that the child's father died of a heart condition at 33, a fact the lawsuit claims should have prompted further review of the child's health.

The death of a 16 year-old boy is just an unspeakably awful tragedy. Also bear in mind the caveat that the basis for my opinions is reading a newspaper article - an awful way to evaluate evidence.

That said, I'd have a hard time finding liability if I were a juror under the "school should have given the child a physical" theory. A 16 year-old boy's parents should know that playing basketball is exercising intensely. Parents should not be able to pass that duty onto a school or anyone. I don't blame his mother or anyone else for not getting the boy a physical. It is easy to see how someone could misinterpret the health of a handsome boy who looks very physically fit (the article has a picture). But I'm not sure blaming the school is fair, either.

I've joined the 21st Century this year and started using PowerPoint in my insurance law class at the University of Baltimore School of Law. I've been a professor at UB for 11 years, teaching every semester. But after five or six classes using PowerPoint, I really can't imagine teaching without it. It gives the students something more tangible to grab onto and I think it makes a difference.

The only caveat is that you become a little to wedded to the presentation which, if you are not careful, can present a barrier between you and your students. I felt it yesterday for a moment where I thought I was sticking too much to the outline and thinking where my next slide was going as opposed to truly listening to what the students were saying. I got back on track, but I think it is always something to keep in mind.

Anyway, I know for past comments to this blog that I have a few insurance law professors reading this blog. If anyone out there is teaching Insurance Law and is using PowerPoint slides or any other demonstrative teaching aids, I would appreciate it if you would send me what you have. You can review my PowerPoint presentation for my insurance law class here.

The University of Notre Dame provides a good list of tips for giving PowerPoint presentations if anyone is interested.

• Insurance Law Syllabus (my syllabus, using Insurance Law: Cases and Materials by Henderson and Jerry)
• Michael Abramowicz's Insurance Law Syllabus
• Sample Insurance Law Exam

After putting my kids to bed last night, I took a look at Gregg Easterbrook's Tuesday Morning Quarterback before going to bed. Easterbrook writes on a lot of different topics such as human happiness (interesting sounding book I've never read), global warming, science, space, theology, etc. So his column during the NFL season is full of digressions about topics unrelated to football.

Continue reading "Speeding Ticket Camera" »

The Maryland Court of Appeals decided Abrishamian v. Barbely, a pedestrian accident appeal from Montgomery County, after jury awarded only half of the client’s special damages (medical bills and lost wages) and gave $0.00 for pain and suffering. The Plaintiff loses this appeal and it is not a close call. The court, however, does discuss some interesting law that is of interest to the Maryland accident lawyer.

The first issue is no issue at all. Plaintiff’s lawyer asked the judge to recuse himself because the judge’s brother represented the defendant 17 years ago and someone else with the same last name as Defendant ten years ago. I’d love to know how the Plaintiff’s lawyer learned this fact and I’d also be curious as to why he would seek recusal for such an attenuated connection. Had the court gone the other way, it would have really brought havoc to the justice system in Mayberry. Would they have to transfer every case to Mount Pilot?

(Brief intermission: one of the great unsolved mysteries of my childhood was the distance from Mayberry to Mount Pilot. Someone once said a four hour drive, but Barney Fife said it was 12 miles. Barney was not the most credible person but 12 miles is pretty specific and he had no reason to exaggerate, given the context. I just don’t know. In an unrelated story, I may have watched too much television as a child. Let’s just get back to this case.)

The second issue is far more interesting. Defendant’s doctor was asked on cross whether he had a copy of the Plaintiff’s medical insurance card. Plaintiff’s lawyer objected before an answer could be given and the judge sustained the objection. Plaintiff’s lawyer argued the trial judge should have granted a mistrial because the question violated collateral source rule. Clearly, this is a long shot argument – a mistrial is not out of the question if the question was inappropriate, but it is a Dr. Sam Beckett quantum leap from that to mistrial as a matter law. (The court also noted that a question may not be “evidence” subject to the collateral source rule.)

Continue reading "Maryland Pedestrian Accident Appellate Opinion" »

The Drug and Device Law Blog has a guest post explaining expected changes to the Federal Rules of Procedure that will dramatically change how time is calculated in litigation in federal court. If you are an attorney with a case in federal court, you really need to read this post.

One interesting tidbit that will be a blow to courier services and lawyers looking for a very petty advantage: the deletion of the rule that provided extra time if service was effectuated by U.S. Mail rather than by hand delivery.

In response to a call from one doctor for medical malpractice reform in Montana, Thomas C. Bulma, a Missoula lawyer, points out the following facts:

• Only one Montana dentist has been the subject of a lawsuit in Montana in the past 10 years. The dentist prevailed.
• Only one podiatrist was sued. The podiatrist prevailed.
• There have been 24 medical malpractice trials in Montana in the last 10 years. Ten years.
• Plaintiffs in Montana have won 5 medical malpractice cases in the last 10 years.

Let's play along and agree that medical malpractice premiums are going through the roof in Montana. We should place blame for this on medical malpractice lawyers? What exactly is a Montana dentist or podiatrist paying in malpractice premiums given the one lousy claim in the last ten years. Exactly how much of those premiums are "administrative costs" (which include profit)?

The Yaz lawsuits pending around the country in federal court were consolidated yesterday in MDL-2100, Yasmin and YAZ Marketing, Sales Practices and Products Liability Litigation. John Cord's Drug Recall Lawyer Blog provides all of the details of the transfer. You can find an explanation of what the Yaz MDL means to pending and future Yaz lawsuits here.

Today, it Jeans Day at Miller & Zois in honor of breast cancer. Everyone who wore jeans today made a contribution to breast cancer research. Cancer is an awful thing but I really think we are going to beat it in my lifetime.